General (scope, time limits)
Applications for international protection shall be examined and decided upon by PMM.[1] “Migration experts” from the Department of International Protection oversee the processing of applications at Headquarters and the PDMM.
The interviews shall be held within 30 days after registration and decision shall be issued within 6 months from registration.[2] However, this is not a binding time limit, as the law states that in case an application cannot be decided within 6 months the applicant will be notified. In practice, severe delays are observed in the completion of the international protection procedure, against the backdrop of capacity shortages at the PDMM. Applicants may wait for years, sometimes for 5 to 8 years[3], for a decision to be taken on their application.[4]Although their IDs should not be confiscated before a definitive rejection decision, this is done in practice, leading to significant difficulties in accessing rights[5].
Although the application process is lengthy, rejection responses sometimes come faster, especially for single men, rejections often result from insufficient information and documentation, failure to meet the burden of proof, or inadequate supporting evidence[6]. In 2023, rejections increased significantly. Information about acceptance rates or decision-making times is lacking. In 2023, 94,506, and in 2022, 51, 472 decisions were taken by PMM[7].
IP applications of people holding International Protection status from UNHCR and living in Türkiye for 10 years and 12 years were kept on shelves but as of 2021, it was observed that PMM has been rejecting those applications in mass. Stakeholders believe that PDMM’s staff does not have the capacity to deal with workload required for international protection applications. For the last 1-2 years, international protection applications have been taken off the shelves and negative decisions have been made.[8] There are some cases of international protection applicants who have been living in Türkiye for 8-10 years, receive rejections.
Overall, practice on the examination and the decision-making at first instance is not uniform across provinces[9]. The quality of interviews, the assessment of evidence, the challenges of identification of vulnerable groups, the lack of available interpreters in certain languages have been reported as particular concerns. For the application process to continue smoothly, more personnel and translators are needed, but there is a lack of capacity[10]. There are too many pending international protection files, authorities are working to fasten the decision process after registration and decrease the waiting time for the decision[11].
UNHCR provides support to PMM in terms of country-of-origin information and capacity, aiming to contribute to the quality of decisions[12].
Prioritised examination and fast-track processing
Persons with special needs shall be “given priority with respect to all rights and proceedings” pertaining to the adjudication of international protection applications.[13] In practice, despite the severe obstacles to Registration, persons with special needs such as women in advanced stages of pregnancy, persons with acute health needs, or unaccompanied children have benefitted from prioritisation in the registration of international protection applications at the PDMM.[14] The number of people with special needs was 80,731 in 2023, earthquake disasters caused disruption in special needs determination procedures in the first half of the year[15]. The number of interviews conducted with potential trafficking victims was 20,260, 223 victims of human trafficking identified in 2023[16].
Personal interview
Under the regular procedure, the competent PDMM is required to carry out a personal interview with applicants within 30 days from registration,[17] to be conducted by personnel trained in fields such as refugee law, human rights and country of origin information.[18]
Applicants are notified of the assigned place and date of their personal interview at the end of their Registration interview.[19] If the interview cannot be held on the assigned date, a new interview date must be issued.[20] The postponed interview date must be no earlier than 10 days after the previous appointment date. Additional interviews may be held with the applicant if deemed necessary.[21] In practice, however, applicants face significant delays, often up to several months, before a first interview.
The applicant may be accompanied in the interview by: (a) family members; (b) their lawyer as an observer; (c) an interpreter; (ç) a psychologist, pedagogue, child expert or social worker; and (d) the legal representative where the applicant is a child.[22]
There are two decision centres located in İstanbul and Ankara. There are 8 mobile decision teams located in Ankara, Eskisehir, Sakarya, Denizli, Mersin, Samsun, Sivas, and Izmir, with around 60 staff members, including psychologists, and sociologists[23]. The mobile teams are providing support to other cities for refugee status determination, especially for difficult cases and for interpretation support. In 2023, they provided support in around 25 cities, including Kars, Manisa, and Çankırı[24]. In total, more than 550 migration experts work in the procedure of international protection determination. To improve the decision processes, trainings are organised for PMM staff, and random file-checkings are conducted. One of the priorities of PMM in 2023, is fast and efficient procedures.
Although there are some positive efforts, practice is still not uniform across provinces and the quality of the procedure depends on the case officer handling the application.[25] According to civil society and lawyers, however, the quality of interviews remains low in most PDMM. In Ağrı, a person who worked in Afghanistan for an international organisation and sought international protection was denied international protection. The applicant then appealed against this decision. According to the Erzurum 1st Administrative Court, PDMM should have conducted a more effective personal interview. PDMM abided by the decision and invited the applicant for a second personal interview. Her lawyer was present during the interview, and she was granted international protection.[26]
Overall, in 2023 stakeholders reported that refugee status determination interviews were often not carried out under proper conditions, vulnerabilities were often not considered and Afghans’ applications (especially single men) for international protection seemed to be rejected by default.[27]
Interviews do not depend on credible country of origin information. Since 2022, some progresses were reported regarding interviews with LGBTIQ+ and HIV+ individuals. The UNHCR provided intensive trainings to PMM’s protection officers, which led to this improvement. However, the method for rejecting applications and the legal justifications for rejected decisions were deemed rather superficial.[28] In 2023, it is known that during interviews with LGBTIQ+ refugees, unnecessary and sometimes psychologically abusive questions are asked to determine if individuals were indeed LGBTIQ+[29]. Notably, questions involving violence are often omitted from the interview forms.
In some cases, each adult member of the family is interviewed individually. Often in practice, this is not implemented. If the application is done as a family, interviews often are not conducted separately for adult women and men from the same family[30]. Audio or video records of the interviews may be taken, though in current practice no such audio or video records are used.
In 2023, all stakeholders reported the biggest obstacle was access to the procedure (see Registration of the asylum application).
Interpretation
Applicants shall be provided with interpretation services, if they so request, for the purpose of personal interviews carried out at application, registration and personal interview stages.[31]
Regarding the quality of interpretation during personal interviews, the personal interview shall be postponed to a later date where the interview official identifies that the applicant and the interpreter have difficulties understanding each other.[32] The interviewer shall inform the interpreter of the scope of the interview and the rules to be complied with.[33]
In 2023, no concerns were reported on the adequate numbers of interpreters however there are shortages or a lack of interpreters in specific rare languages spoken by applicants. Moreover, the number of women interpreters remains low.[34] Even though gender of the interpreters and the applicants are considered. Lack of sensitivity to and censorship of applicants’ statements have also been reported in claims relating to sexual orientation or gender identity.[35] Lawyers have expressed concerns about the quality of interpretation in removal centres including in important interviews on return.[36] However, as a positive development, the number of interpreters increased.[37]
Report
The interviewing official shall use a standard template called “International Protection Interview Form” to record the applicant’s statements during the personal interview. This form is a template consisting of a predefined set of questions that must be presented to the applicant covering basic biographic information, profile indicators, reasons for flight and fear of return, among others.[38]
The interview official is required to read out the contents of the International Protection Interview Form to the applicant at the end of the interview and ask the applicant whether there are any aspects of the transcript that he or she wants to correct and whether there is any additional information he or she would like to present.[39]
An interview report shall then be drafted at the end of the interview, and the applicant shall sign it and receive a copy.[40] In practice, applicants are not given a copy of the interview report.[41]
Appeal
Decisions must be communicated in writing.[42] Notifications of negative decisions should lay down the objective reasons and legal grounds of the decision. Where an applicant is not represented by a lawyer, he or she shall also be informed about the legal consequences of the decision and applicable appeal mechanisms. Furthermore, the notification of all decisions within the scope of the LFIP shall give due consideration to the fact that the “persons concerned are foreign nationals” and a separate directive shall be issued by PMM to provide specifics on modalities of written notifications.[43] In practice, the decisions are in Turkish but translated by the PDMM into the language of the applicants.[44]There are some concerns about the lack of verbal or written notification and lack of referral to organisations providing support for the appeal[45].
The LFIP provides two separate remedies against negative decisions issued in the regular procedure, one optional administrative appeal remedy and one judicial appeal remedy. When faced with a negative status decision by PMM under the regular procedure, applicants may:[46]
File an administrative appeal with the International Protection Evaluation Commissions (IPEC) within 10 days, and file an onward judicial appeal with the competent Administrative Court only if the initial administrative appeal is unsuccessful; or
Directly file a judicial appeal with the competent Administrative Court within 30 days.
In practice, the latter remedy is applied. Both types of appeals have automatic suspensive effect. Under the LFIP, applicants shall generally be allowed to remain in Türkiye until the full exhaustion of remedies provided by LFIP against negative decisions,[47] subject to the derogation discussed in Removal and Refoulement.
In 2023 legal aid offices carried out assignment processes smoothly, with no exceptions or discrimination including against applicants having YTS (foreign terrorist fighter) codes. In criminal courts, the compulsory defense mechanism does not function as well. If in theory, when the person is deprived of this right, the court should remind them of their right to have a defense lawyer, some foreign citizens’ cases have been settled without the assistance of a lawyer.
Ankara, Istanbul and Izmir Administrative Courts do not accept the assignment letters of legal aid lawyers – they require a power of attorney instead[48]. They said that the legal aid assignment letter was only internal correspondence, so the acceptance of the assignment letter was illegal. Lawyers working on refugee rights may have difficulty accessing power of attorney. In one case, the court ruled that the lawyer had worked without a power of attorney, complained to the bar association for disciplinary reasons, and ordered the lawyer to pay the attorney’s expenses[49].
Administrative appeal before IPEC
Negative decisions in the regular procedure may be appealed at the IPEC within 10 days of the written notification of the decision.[50]
IPEC are envisioned as a specialised administrative appeal body and serve under the coordination of the PMM Headquarters.[51] One or more IPEC may be created under the auspices of either the PMM Headquarters and/or PDMM.
Each Committee will be chaired by a PMM representative and will feature a second PMM official as well as representatives of the Ministry of Justice and Ministry of Foreign Affairs. UNHCR may be invited to assign a representative in observer status.[52] PMM personnel assigned to the IPEC will be appointed for a period of 2 years whereas the Ministry of Justice and Ministry of Foreign Affairs representatives will be appointed for one-year term. IPEC are envisioned to serve as full-time specialised asylum tribunals as members will not be assigned any additional duties.[53]
IPEC are competent to evaluate and decide appeals against the following decisions:[54]
- Negative status decisions issued in the regular procedure;
- Other negative decisions on applicants and international protection status holders, not pertaining to international protection status matters as such;
- Cessation or Withdrawal of status decisions.
On the other hand, decisions on administrative detention, inadmissibility decisions and decisions in the accelerated procedure are outside the competence of IPEC.
IPEC review the initial PMM decision on both facts and law.[55] The Commission may request the full case file from PMM if deemed necessary. IPEC are authorised to interview applicants if they deem necessary or instruct the competent PDMM to hold an additional interview with the applicant.
Whereas the LFIP does not lay down a time limit for the finalisation of appeals filed with IPEC, Article 100(3) RFIP provides that the Commission shall decide on the appeal application and notify the applicant within 15 days of receiving the application, which may be extended by 5 more days.
IPEC do not have the authority to directly overturn PMM decisions. The Commission may either reject the appeal and thereby endorse the initial PMM decision, or it may request PMM to reconsider its initial decision in terms of facts and law.[56] Therefore, decisions by IPEC cannot be considered as binding on PMM. If PMM chooses to stick to its initial negative decision, the applicant will have to file a consequent judicial appeal with the competent Administrative Court.
It appears from lawyers and experts in the field that the IPEC is not an effective administrative appeal mechanism and applicants prefer directly filing a judicial appeal before the Administrative Court.
Judicial appeal at the Administrative Court
Negative decisions in the regular procedure may also be directly appealed at the competent Administrative Courts within 30 days of the written notification of the decision.[57] There is no requirement for applicants to first exhaust the IPEC step before they file a judicial appeal against a negative decision. However, if they choose to file an administrative appeal with IPEC first, depending on the outcome of the IPEC appeal, they can appeal a negative IPEC decision onward at the Administrative Court.
Under Turkish law, Administrative Court challenges must be filed in the area where the act or decision in question was taken.[58]
While the LFIP has not created specialised asylum and immigration courts, Türkiye’s High Council of Judges and Prosecutors shall determine which Administrative Court chamber in any given local jurisdiction shall be responsible for appeals brought on administrative acts and decisions within the scope of the LFIP.[59] In 2015, the Council passed a decision to designate the 1st Chamber of each Administrative Court as responsible for appeals against decisions within the scope of LFIP. These competent chambers continue to deal with all types of caseloads and do not exclusively serve as asylum and immigration appeal bodies. Concerns about the quality of decisions persisted in 2023.[60]
There are no time limits imposed on Administrative Courts to decide on appeals against negative decisions in the regular procedure. Administrative Court applications are normally adjudicated in a written procedure. In theory, an applicant can request a hearing, which may or may not be granted by the competent court.
Administrative Courts are mandated to review the PDMM decision on both facts and law. If the application is successful, the judgment annuls the PDMM decision but does not overturn it as such. According to administrative law, the first instance authority is obligated to either revise the challenged act or decision or appeal the Administrative Court decision to the Council of State (Danıştay) within 30 days.[61]
The evidence threshold set by administrative courts has remained excessively high, thereby reducing applicants’ chances of obtaining a favourable ruling on their appeals for international protection registration. Moreover, the onward appeal has been ineffective for a long time.[62]
The rate of positive decisions in cases filed appealing international protection refusal is very low. There are inconsistencies and the quality of court decisions can vary from province to province and from court to court in the same province. The different decisions are made about two applicants in similar situations[63]. Some judges have little legal/practical knowledge of international protection procedures. Sometimes they request a briefing from PDMM about the country of origin to decide, since most judges do not speak English, they cannot access the country-of-origin information.[64] Mülteci-der produced country of origin reports[65] and published the translation of ECtHR judgements into Turkish[66] within the scope of the “Rights in Administrative Detention” project carried out with the financial support of the European Union.
Case law of the Administrative Courts confirms that there are persisting gaps in the quality of first instance decisions. The Administrative Courts of Ankara, İstanbul, Izmir and Van are regarded as the most expert courts in refugee law issues. These courts often diligently examine whether the negative decisions on international protection applications are in line with the non-refoulement principle and have annulled decisions based on an incorrect assessment on the part of the PMM. The decisions of administrative courts such as in Istanbul and Ankara, which have more experience, are more consistent in line with the legal framework. It was observed that Izmir administrative court gave positive results based on concrete evidence in 2023.
However, there have been less favourable attitudes to foreign citizens in judicial decisions and is probably linked to rising xenophobia and anti-refugee discourse in the country[67]. In a legal aid case involving an African applicant’s appeal case on international protection, the lawyer requested the appointment of an interpreter through the legal aid budget. However, her request was denied, and the judge ordered the applicant to find an interpreter and pay the fees out of his own pocket.[68]
The Erzurum 1st Administrative Court has rare positive decisions, one of its decisions involved an Afghan applicant who was a prosecutor in Afghanistan who applied for international protection but it was denied by PDMM. He filed an appeal with the Erzurum 1st Administrative Court. The court ruled in favour of the applicant, concluding he could not be deported to Afghanistan due to the risk of persecution he would face.[69] In 2023, the negative international protection status decision issued due to the Moroccan national’s failure to fulfill the notification obligation and being caught in another province without a travel permit was annulled by the Ordu Administrative Court[70].
Onward appeal before the Regional Administrative Court and the Council of State
Applicants have the possibility of filing an onward appeal with the Regional Administrative Court and then the Council of State within 30 days.[71] There is no time limit for the Regional Administrative Court and the Council of State to decide on the application. The Council of State decision on the onward appeal will constitute the final decision on the application since it cannot be further appealed.
It is difficult to establish the exact number of refused and accepted decisions from the Regional Administrative Court and the Council of State.
Legal assistance
All applicants for and beneficiaries of international protection have a right to be represented by an attorney in relation to “all acts and decisions within the scope of the International Protection section of the LFIP”, under the condition that they pay for the lawyer’s fees themselves.[72]
In principle, a notarised power of attorney is required for a lawyer to represent the asylum seeker,[73] unless the applicant benefits from the Legal Aid Service, in which case the appointment letter is deemed sufficient to represent the applicant.
As per the Union of Notaries Circular 2016/3 of 2 March 2016, the International Protection Applicant Identification Card is included in the list of documents accepted by public notaries. Still, the power of attorney requirement entails additional financial costs, which vary depending on location, and poses substantial obstacles to applicants in detention.
The Ombudsman Institution has issued a recommendation stating that no fees should be charged for power of attorney arranged at a notary if a request for legal aid is accepted. In its decision dated May 30, 2023, numbered 2023/6520-S.23.10734[74], the Ombudsman Institution reviewed the request to annul the Turkish Notaries Association’s Circular No. 2022/10 and to issue a new circular mandating that no fees be collected for attorney powers of attorney at the notary when legal aid is granted by the court. The Ombudsman Institution published this recommendation on its official website, advising the Turkish Notaries Association to reassess the matter under current legislation. Emphasising the state’s duty to remove political, economic, and social barriers to the right to a fair trial, as outlined in the Constitution and the European Convention on Human Rights, the Ombudsman Institution also referenced the Supreme Court’s ruling recognising notaries as institutions of trust.
Legal assistance at first instance
Lawyers and legal representatives can accompany applicants during the personal interview.[75] Furthermore, lawyers and legal representatives are guaranteed access to all documents in the file and may obtain copies, with the exception of documents pertaining to national security, protection of public order and prevention of crime.[76] International protection applicants and status holders are also free to seek counselling services provided by NGOs.[77]
These safeguards, however, are inscribed as “freedoms” as opposed to “entitlements” that would create a positive obligation on the state to secure the actual supply and provision of legal counselling, assistance and representation services. In some cases, not necessarily linked to the international protection procedure, PMM has prohibited lawyers from providing oral counselling to clients in the absence of a power of attorney.
The actual supply of free of charge and quality legal assistance to asylum seekers in Türkiye remains limited mainly due to practical obstacles. That said, the Project “Strengthening the Capacity of Bar Associations and Lawyers on European Human Rights Standards” which was co-financed by the European Union, and the Council of Europe, provided trainings, study visits, and other capacity building activities to contribute to the effective implementation of European human rights standards in Türkiye and to strengthen the capacities of Turkish bar associations and lawyers in the implementation of these standards.[78]
Through a partnership between UNHCR and the Union of Turkish Bar Associations (UTBA), legal clinics in Gaziantep, Şanlıurfa, Hatay, Kilis, Malatya, and recently Van, provide legal assistance and counseling to refugees and asylum seekers. These services cover civil law, exit and re-enter procedures, detention, access to rights, family reunification, reissuing of identity cards, queries related to resettlement and civil law, and consumer and rent laws. The clinics assisted numerous individuals and held outreach activities, including sessions on access to justice and the rights of unaccompanied children, and focused on marriage and divorce for Syrian women. By June 2023, the legal clinics assisted 719 individuals. In June 2023, an online system also processed 530 legal aid applications, with a joint commission evaluating and acting on the cases[79].
As most deportation decisions are based on LFIP for public security, public health, and links to terrorist organisations, most deportation assignments do not fall within this project’s scope. The Gaziantep Bar Association, for instance, only accepts divorce and residence permit cases, and if UTBA project rejects a lawyer’s appointment, the legal aid office also rejects paying for the lawyer’s fee. Stakeholders interpreted this shift in practise as a shift in attitude towards refugees.[80] It is observed that in the provinces that are within the scope of UTBA projects, the bar associations at times tend to limit the legal aid with the projects, which can be restrictive for access to legal assistance because UTBA projects may have criteria that are different from those under legal aid legislation.[81] In 2023, it was reported that some legal aid centres denied certain requests.[82] However, legal aid of the Izmir Bar Association has consistently assists refugees[83].
Due to budget-related issues[84], the UTBA project often halts support during certain months until it is reactivated, causing problems in accessing lawyers. Project budgets typically run out by October or November and resume around March, leading many bar associations to refrain from making appointments during this interim period. Some bar associations only make appointments if the project has the budget; otherwise, they do not proceed. Although the project provides crucial support, bar associations should fund appointments from their own budgets when the project does not cover them. However, the İzmir and Ankara bar associations continue to make appointments even without the project budget. The İzmir Bar Association generally makes appointments first and then charges them to the project if applicable; otherwise, they cover the costs themselves. The provision of legal aid services is at the discretion of each bar association. Inflation-driven increases in lawyer fees have strained bar association budgets, leading to cuts in legal aid services for asylum seekers and refugees. In addition, legal aid budgets are determined according to the number of lawyers and citizens in the province, but non-citizens such as applications for international protection are not considered when the budget is planned. It also results in significantly less budget for legal aid in smaller provinces. Thus, some bar associations face significant budget challenges[85].
Overall, the project has been considered quite useful and was seen as particularly effective in provinces where refugees are concentrated but cannot afford to pay for legal fees and court costs out of their pockets. While the bar associations in the metropolitan areas can provide this service through their legal aid budgets, unfortunately, the bar associations in small cities have not been able to offer well-functioning legal aid to refugees without UTBA project. Benefits have included an increase in refugees’ access to justice and information, as indicated by information materials on display in removal facilities targeted by the project but not in others, which are not project cities. Some concerns were voiced because lawyers were not appointed promptly enough in circumstances that are time-sensitive such as deportation cases. In 2023 as in previous years, the concerns are reported as to whether those who are imposed a security code are allowed to get legal assistance under the scheme.[86]
Requests for legal aid can be issued from an asylum seeker, a third party or a removal centre. Civil society organisations are the main source of referrals for legal aid with direct applications from refugees and migrants but even this group remains low. This has provided the impetus for the legal aid scheme to extend to persons seeking international protection, and in some cases, for bar associations to take additional steps in contributing to refugee protection in Türkiye.[87] Bar associations allocate cases through an automated system and decide whether they are eligible for legal aid under the project, otherwise it is channelled into their general Legal Aid Scheme (Adli Yardım) discussed below.[88] In addition, not all the cases referred by NGOs are eligible for legal aid.[89] One practical issue concerns asylum seekers who have been issued a security code e.g. “G87” or “G89”, as the aforementioned legal aid project funding does not cover them and it is up to bar associations to cover costs with additional funding, if they can.[90]
The UTBA project has been providing a telephone interpretation service in four languages (Arabic, Persian, Dari, and French) for court officials and lawyers offering legal help to Syrian and non-Syrian applicants, and this service could be used in Removal Centres where lawyers have a fixed line.[91]
Within the scope of the action of “Fostering Women’s Access to Justice in Türkiye” jointly supported by the European Unipon and the Council of Europe, a legal literacy training for women who are exposed to gender-based violence was held in Hatay which is the most affected by the earthquake in December 2023. The training aimed to empower women to claim their rights and utilize available support mechanisms, covering issues like gender-based violence, divorce, alimony, and housing rights post-earthquake. Participants were informed about obtaining free legal support through the legal aid system[92].
In partnership with the Union of Turkish Bar Associations (UTBA), UNICEF launched the Legal Empowerment, Aid, and Protection Programme (LEAP). The programme aims to strengthen the paralegal workforce, provide free legal counseling to affected populations in the earthquake zones through mobile units, and offer free legal aid and representation for certain cases involving children through the official legal aid system[93]. A mobile legal aid vehicle named “Law” is equipped with rooms and computers for lawyers to meet with children and caregivers[94]. Starting in August 2023, the programme seeks to reach over 6,000 beneficiaries[95].
UNICEF and the Union of Turkish Bar Associations (UTBA) have launched another new initiative aimed at enhancing child-friendly legal aid in Türkiye, “Improving the Capacity of Lawyers and Bar Associations on Promotion, Protection and Monitoring of Children’s Rights (ÇABA) Project” seeks to bolster the knowledge and skills of lawyers regarding children’s rights, ensuring equitable access to justice for children. With a €3.2M funding from the European Union, this three-year project will develop a comprehensive training program for approximately 2,000 lawyers, establish five pilot Child Rights Centres in Adana, Aydın, Batman, Erzurum, and Trabzon, and strengthen the monitoring capabilities of Bar Associations. UNICEF anticipates that these efforts will indirectly benefit at least 100,000 children through improved legal aid services[96].
Beyond the involvement of bar associations, several NGOs are providing legal information and assistance service, but they do not have the resources and operational capacity to establish a significant level of field presence throughout the country. Considering the size of the asylum-seeking population and Türkiye’s geographical dispersal policy (see Freedom of Movement), asylum seekers in most locations do not have access to specialised legal counselling and assistance services by NGOs at first instance. NGOs providing legal assistance and counselling to asylum seekers include ASAM, Support to Life (STL), International Refugee Rights Association (Uluslararası Mülteci Hakları Derneği), Refugee Rights Turkey (Mülteci Hakları Merkezi), Mülteci-Der, MUDEM, Human Resource Development Foundation (HRDF) and Red Umbrella Sexual Health and Human Rights Association among others. In the absence of any dedicated state funds to fund legal assistance services by NGOs to asylum seekers, the limited amount of project-based external funding available to NGO providers, insufficient prioritisation of direct legal service activities in donor programmes and stringent bureaucratic requirements of project-based funding make it very difficult for specialised NGO legal service providers to emerge and prosper.
NGOs have a vital role in helping the functioning of the process more generally. The Bar does not have sufficient knowledge to identify the needs of refugees, but NGOs do this on behalf of the Bar Associations. NGOs identify these needs with the help of their translators, protection experts, social workers, and legal advisors and transmit this knowledge to bar associations. In addition, after the Bar Association appoints a lawyer, NGOs, and their in-house lawyers follow up on the case and provide information to the appointed legal aid lawyer throughout the trial process.
Legal assistance in judicial appeals
Persons who do not have the financial means to pay a lawyer are to be referred to the state-funded Legal Aid Scheme (Adli Yardım) for judicial appeals in the international protection procedure.[97] The LFIP simply refers to the existing Legal Aid Scheme which in theory should be accessible to all economically disadvantaged persons in Türkiye, including foreign nationals.
The Legal Aid Scheme is implemented by the bar associations in each province subject to “means” and “merits” criteria, at the discretion of each bar association board. The assessment of “means” varies across bar associations.
One practical impediment to more active involvement by bar associations is the overall scarcity of legal aid funding made available to bar associations from the state budget. While technically all types of “lawyer services” fall within the scope of legal aid as per Türkiye’s Law on Attorneys, in practice the Legal Aid Scheme in Türkiye provides free legal representation to beneficiaries in relation with judicial proceedings as distinct from legal counselling and consultancy services short of court proceedings. This is indeed a principle reaffirmed by Article 81(2) LFIP, which provides that international protection applicants may seek state-funded legal aid in connection with judicial appeals pertaining to any acts and decisions within the international protection procedure. The suspension of the UTBA project in October – November 2023 in several cities had a direct impact on refugee legal aid services.[98]
The costs associated with bringing a case before an Administrative Court in Türkiye include notary fees for the power of attorney, sanctioned translations of identity documents, court application and other judicial fees and postal fees. Since the Legal Aid Scheme only covers a modest attorney fee, applicants are required to cover these costs from their own resources. Although it is possible to request a waiver of these costs from the court, judges have wide discretion on whether to grant such exemptions and in some cases decline the request without providing any substantial reason.[99] The Ombudsman Institution has issued a recommendation that no fee should be charged for attorney power of attorney documents arranged at notaries when legal aid requests are accepted in its decision dated 30 May 2023.
The level of financial compensation afforded to lawyers within the state-funded Legal Aid Scheme is modest and is typically aimed to attract young lawyers at the early stages of their professional careers. The payments to legal aid lawyers are made on the basis of the type of legal action undertaken as opposed to hours spent on the case. As a result, there are insufficient incentives for legal aid lawyers to dedicate generous amounts of time and effort to asylum cases. That said, the aforementioned legal aid project implemented by UNHCR and the Union of Turkish Bar Associations provides targeted funding to 45 bar associations for international and temporary protection-related cases.
[1] Article 78 LFIP.
[2] Article 78(1) LFIP.
[3] KAOS GL, 10 şehirden avukatlar, mülteci LGBTİ+’ların hakları için buluştu, 6.12.2023, available here.
[4] Information provided by various stakeholders, May-June 2023.
[5] Information shared by a stakeholder, March 2024.
[6] Information shared by stakeholders, March – April 2024.
[7] PMM, Faaliyet Raporu 2023, available here.
[8] Information provided by stakeholders, May-June 2023 & Information provided by stakeholders, March – April 2024.
[9] Information provided by stakeholders, March – April 2024
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Article 67 LFIP.
[14] Information provided by a stakeholder, February 2019 & Information provided by stakeholders, March – April 2024.
[15] PMM, Faaliyet Raporu 2023, available here.
[16] PMM, Faaliyet Raporu 2023, available here.
[17] Article 75(1) LFIP.
[18] Article 81(2) RFIP.
[19] Article 69(5) LFIP.
[20] Article 75(4) LFIP.
[21] Article 75(5) LFIP.
[22] Article 82(1) RFIP.
[23] Information provided by a stakeholder, March 2024.
[24] Information provided by a stakeholder, March 2024.
[25] Information provided by various stakeholders, May-June 2023 & March – April 2024.
[26] Information provided by a stakeholder, May 2023.
[27] Information provided by various stakeholders, May 2023 & March- April 2024.
[28] Information provided by a stakeholder, June 2023.
[29] KAOS GL, 10 şehirden avukatlar, mülteci LGBTİ+’ların hakları için buluştu, 6.12.2023, available here.
[30] Information provided by a stakeholder, March – April 2024.
[31] Article 70(2) LFIP.
[32] Article 86(2) RFIP.
[33] Article 83(3) RFIP.
[34] Information provided by a stakeholder, March – April 2024.
[35] Information provided by a stakeholder, May 2022.
[36] Information provided by a stakeholder, May 2022.
[37] Information provided by various stakeholders, May-June 2023.
[38] Article 81(5) RFIP.
[39] Article 86(3) RFIP.
[40] Article 75(6) LFIP.
[41] Information provided by a stakeholder, February 2019 and March 2021.
[42] Article 78(6) LFIP.
[43] Article 100 LFIP.
[44] Information provided by a stakeholder, May 2023.
[45] Information provided by a stakeholder, March – April 2024.
[46] Article 80 LFIP.
[47] Article 80(1)(e) LFIP.
[48] Information provided by stakeholders, March – April 2024.
[49] Information provided by a stakeholder, March 2024.
[50] Article 80(1)(a) LFIP.
[51] Article 134 RFIP.
[52] Article 145 RFIP.
[53] Article 146 and 147 RFIP.
[54] Article 149 RFIP.
[55] Article 100(1) RFIP.
[56] Article 100(2) RFIP.
[57] Article 80(1)(ç) LFIP.
[58] In Türkiye, not all provinces have Administrative Courts in location. Smaller provinces which do not have an Administrative Court in location are attended by courts operating under the auspices of the nearest Administrative Court. The Administrative Court of each province is divided into several chambers which are designated with numbers.
[59] Article 101 LFIP.
[60] ECRE AIDA Database, ‘Türkiye: Judicial Review of Administrative Detention Decisions’, 28 May 2018, available here. Information provided by stakeholders, March – April 2024.
[61] Article 28 Law on Administrative Court Procedures.
[62] Information provided by a stakeholder, April 2023 & information provided by stakeholders, March – April 2024.
[63] Information provided by stakeholders, March – April 2024.
[64] Information from a stakeholder, May 2022.
[65] Mülteci-der, Menşe Ülke Bilgi Notları, available here.
[66] Mülteci-der, AİHM Kararları, available here
[67] Information provided by stakeholder, 2023 & Information provided by stakeholders, March – April 2024.
[68] Information provided by a stakeholder, May 2023.
[69] Information provided by a stakeholder, May 2023.
[70] Refugee Rights Turkey, Karar Merkezi, available here.
[71] Article 28 Law on Administrative Court Procedures.
[72] Article 81(1) LFIP.
[73] On this point, see Constitutional Court, Decision 2015/87, 8 October 2015, available in Turkish here.
[74] X Avukat Hakları Grubu Ankara, 11.09.2023, available here.
[75] Article 75(3) LFIP.
[76] Article 94(2) LFIP.
[77] Article 81(3) LFIP.
[78] COE, Joint Project on Strengthening the Capacity of Bar Associations and Lawyers on European Human Rights Standards, available here.
[79] UNHCR-Turkiye-Operational-Update-June-23, available here.
[80] Information provided by a stakeholder, June 2023.
[81] Information provided by a stakeholder, June 2023.
[82] Information provided by a stakeholder, April 2023 & Information provided by stakeholder, March – April 2024.
[83] Information provided by stakeholders, April 2024.
[84] Information provided by stakeholders, March – April 2024.
[85] Information provided by stakeholders, March – April 2024.
[86] Information provided by stakeholders, May 2023 & Information provided by stakeholders, March – April 2024.
[87] Information provided by a stakeholder, May 2023.
[88] Information provided by a stakeholder, May 2023.
[89] Information provided by a stakeholder, May 2023.
[90] Information provided by various stakeholder, May 2023.
[91] Information provided by stakeholders, May 2023 & Information provided by stakeholders, March – April 2024.
[92] CoE, Increasing women’s knowledge of their rights following the earthquakes in Türkiye, December 2023, available here.
[93] UNICEF Türkiye Humanitarian Situation Report No.16, 6 February 2023-30 June 2023, available here.
[94] Adana Barosu, TBB-UNICEF İş Birliğinde Yürütülen Proje Kapsamında “Yasa” Adlı Yolda Yardım Servis Aracı TBB’ye Teslim Edildi, April 2024, available here.
[95] UNICEF Türkiye Humanitarian Situation Report No.16, 6 February 2023-30 June 2023, available here.
[96] UNICEF, 09.06.2023. UNICEF and Union of Turkish Bar Associations launch innovative child-friendly legal aid project to promote equal access to justice for all children, available here.
[97] Article 81(2) LFIP.
[98] Information provided by stakeholders, April 2023 and March – April 2024.
[99] The Council of State ruled in one case that the right to request waiver of the costs should be reminded and examined by the Administrative Court in each case: Decision No 2016/1830, 31 March 2016.